These Terms of Service (“Terms”) apply to your access to and use of the websites, mobile applications and other online products and services (collectively, the “Services”) provided by Fluid Corp. (“Fluid” or “we”). By clicking [“Accept”] or by using our Services, you agree to these Terms, including the mandatory arbitration provision and class action waiver in Section 14. If you do not agree to these Terms, do not use our Services. If you have any questions about these Terms or our Services, please contact us at [email protected]. For information about how we collect, use, share and otherwise process information about you, please see our Privacy Policy. Eligibility You must be at least 18 years of age to use our Services. If you are under 18 years of age (or the age of legal majority where you live), you may use our Services only under the supervision of a parent or legal guardian who agrees to be bound by these Terms. If you use our Services on behalf of another person or entity, (a) all references to “you” throughout these Terms will include that person or entity, (b) you represent that you are authorized to accept these Terms on that person’s or entity’s behalf, and (c) in the event you or the person or entity violates these Terms, the person or entity agrees to be responsible to us. User Accounts and Account Security You may need to register for an account to access some or all of our Services, such as the Fluid User Portal & Dashboard. If you register for an account, you must provide accurate account information and promptly update this information if it changes. You also must maintain the security of your account and promptly notify us if you discover or suspect that someone has accessed your account without your permission. If you permit others to use your account credentials, you are responsible for the activities of such users that occur in connection with your account. We reserve the right to reclaim usernames, including on behalf of businesses or individuals that hold legal claim, including trademark rights, in those usernames. You agree that your account is not transferable and that in the event of your death, incapacity or unavailability, we may terminate any rights to your account. Data Collection, Use, and Sharing for Providing AI Support Services We provide AI-based customer support services (“AI Support Services”) for certain third parties which host our Services on their websites (“Business Partners”). By using our AI Support Services that are located on a Business Partner site, or by engaging with us on our Business Partner’s site, you acknowledge and agree that you are intentionally interacting with and providing your personal information to both that Business Partner and Fluid, as described in our Privacy Policy. The Business Partner’s posted site privacy policy informs you how it uses and shares your information, and Fluid is not responsible for Business Partner’s privacy practices. We share personal information related to those transactions with that Business Partner to manage our transactions with you. For more information about our privacy practices, please review our Privacy Policy at https://withfluid.com/privacy. Prohibited Conduct and Content You will not violate any applicable law, contract, intellectual property right or other third-party right or commit a tort, and you are solely responsible for your conduct while using our Services. You will not: Engage in any harassing, threatening, intimidating, predatory or stalking conduct;Use or attempt to use another user’s account without authorization from that user and Fluid;Sell, resell or commercially use our Services;Copy, reproduce, distribute, publicly perform or publicly display all or portions of our Services, except as expressly permitted by us or our licensors;Modify our Services, remove any proprietary rights notices or markings, or otherwise make any derivative works based upon our Services;Use our Services other than for their intended purpose and in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying our Services or that could damage, disable, overburden or impair the functioning of our Services in any manner;Reverse engineer any aspect of our Services or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any part of our Services;Use any data mining, robots or similar data gathering or extraction methods designed to scrape or extract data from our Services;Develop or use any applications that interact with our Services without our prior written consent;Send, distribute or post spam, unsolicited or bulk commercial electronic communications, chain letters, or pyramid schemes;Bypass or ignore instructions contained in our robots.txt file; orUse our Services for any illegal or unauthorized purpose, or engage in, encourage or promote any activity that violates these Terms. Enforcement of this Section 4 is solely at Fluid's discretion, and failure to enforce this section in some instances does not constitute a waiver of our right to enforce it in other instances. In addition, this Section 4 does not create any private right of action on the part of any third party or any reasonable expectation that the Services will not contain any content that is prohibited by such rules. Please note that parental control protections (such as computer hardware, software or filtering services) may be commercially available to assist you in limiting access to material that is harmful to minors. Information identifying current providers of such protections should be available at: https://en.wikipedia.org/wiki/Comparison_of_content-control_software_and_providers (last checked on February 5, 2023). Ownership; Limited License The Services, including the text, graphics, images, photographs, videos, illustrations and other content contained therein, are owned by Fluid or our licensors and are protected under both United States and foreign laws. Except as explicitly stated in these Terms, all rights in and to the Services are reserved by us or our licensors. Subject to your compliance with these Terms, you are hereby granted a limited, nonexclusive, nontransferable, non-sublicensable, revocable license to access and use our Services for your own personal, noncommercial use. Any use of the Services other than as specifically authorized herein, without our prior written permission, is strictly prohibited, will terminate the license granted herein and violate our intellectual property rights. Trademarks Fluid Corp. and our logos, our product or service names, our slogans and the look and feel of the Services are trademarks of Fluid and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names and Fluid names or logos mentioned on the Services are the property of their respective owners. Reference to any products, services, processes or other information by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation by us. Feedback You may voluntarily post, submit or otherwise communicate to us any questions, comments, suggestions, ideas, original or creative materials or other information about Fluid or our Services (collectively, “Feedback”). You understand that we may use such Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you, including to develop, copy, publish, or improve the Feedback in Fluid’s sole discretion. You understand that Fluid may treat Feedback as nonconfidential. Third-Party Content We may provide information about third-party products, services, activities or events, or we may allow third parties to make their content and information available on or through the Services (collectively, “Third-Party Content”). We provide Third-Party Content as a service to those interested in such content. Your dealings or correspondence with third parties and your use of or interaction with any Third-Party Content are solely between you and the third party. Fluid does not control or endorse, and makes no representations or warranties regarding, any Third-Party Content, and your access to and use of such Third-Party Content is at your own risk. Indemnification To the fullest extent permitted by applicable law, you will indemnify, defend and hold harmless Fluid and our officers, directors, agents, partners and employees (individually and collectively, the “Fluid Parties”) from and against any losses, liabilities, claims, demands, damages, expenses or costs (“Claims”) arising out of or related to (a) your access to or use of the Services; (b) your User Content or Feedback; (c) your violation of these Terms; (d) your violation, misappropriation or infringement of any rights of another (including intellectual property rights or privacy rights); or (e) your conduct in connection with the Services. You agree to promptly notify Winter Parties of any third-party Claims, cooperate with Winter Parties in defending such Claims and pay all fees, costs and expenses associated with defending such Claims (including attorneys' fees). You also agree that the Winter Parties will have control of the defense or settlement, at Winter's sole option, of any third-party Claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and Winter or the other Winter Parties. Disclaimers YOUR USE OF OUR SERVICES IS AT YOUR SOLE RISK. EXCEPT AS OTHERWISE PROVIDED IN A WRITING BY US, OUR SERVICES AND ANY CONTENT THEREIN ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. IN ADDITION, Fluid DOES NOT REPRESENT OR WARRANT THAT OUR SERVICES ARE ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE. WHILE Fluid ATTEMPTS TO MAKE YOUR USE OF OUR SERVICES AND ANY CONTENT THEREIN SAFE, WE CANNOT AND DO NOT REPRESENT OR WARRANT THAT OUR SERVICES OR SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ASSUME THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SERVICES. Limitation of Liability TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, Fluid AND THE OTHER Fluid PARTIES WILL NOT BE LIABLE TO YOU UNDER ANY THEORY OF LIABILITY—WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, WARRANTY, OR OTHERWISE—FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, PUNITIVE OR SPECIAL DAMAGES OR LOST PROFITS, EVEN IF Fluid OR THE OTHER Fluid PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE TOTAL LIABILITY OF Fluid AND THE OTHER Fluid PARTIES FOR ANY CLAIM ARISING OUT OF OR RELATING TO THESE TERMS OR OUR SERVICES, REGARDLESS OF THE FORM OF THE ACTION, IS LIMITED TO THE GREATER OF $100 OR THE AMOUNT PAID BY YOU TO USE OUR SERVICES. THE LIMITATIONS SET FORTH IN THIS SECTION 11 WILL NOT LIMIT OR EXCLUDE LIABILITY FOR THE GROSS NEGLIGENCE, FRAUD OR INTENTIONAL MISCONDUCT OF Fluid OR THE OTHER Fluid PARTIES OR FOR ANY OTHER MATTERS IN WHICH LIABILITY CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW. ADDITIONALLY, SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. Release To the fullest extent permitted by applicable law, you release Fluid and the other Fluid Parties from responsibility, liability, claims, demands and/or damages (actual and consequential) of every kind and nature, known and unknown (including claims of negligence), arising out of or related to disputes between users and the acts or omissions of third parties. If you are a consumer who resides in California, you hereby waive your rights under California Civil Code § 1542, which provides: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.” Transfer and Processing Data In order for us to provide our Services, you agree that we may process, transfer and store information about you in the United States and other countries, where you may not have the same rights and protections as you do under local law. Dispute Resolution; Binding Arbitration Please read the following section carefully because it requires you to arbitrate certain disputes and claims with Fluid and limits the manner in which you can seek relief from us, unless you opt out of arbitration by following the instructions set forth below. No class or representative actions or arbitrations are allowed under this arbitration provision. In addition, arbitration precludes you from suing in court or having a jury trial. No Representative Actions. You and Fluid agree that any dispute arising out of or related to these Terms or our Services is personal to you and Fluid and that any dispute will be resolved solely through individual action, and will not be brought as a class arbitration, class action or any other type of representative proceeding. Arbitration of Disputes. Except for small claims disputes in which you or Fluid seeks to bring an individual action in small claims court located in the county of your billing address or disputes in which you or Fluid seeks injunctive or other equitable relief for the alleged infringement or misappropriation of intellectual property, you and Fluid waive your rights to a jury trial and to have any other dispute arising out of or related to these Terms or our Services, including claims related to privacy and data security, (collectively, “Disputes”) resolved in court. Instead, for any Dispute that you have against Fluid you agree to first contact Fluid and attempt to resolve the claim informally by sending a written notice of your claim (“Notice”) to Fluid by email at [email protected] or by certified mail addressed to 2261 Market Street #4599 San Francisco, CA 94114. The Notice must (a) include your name, residence address, email address, and telephone number; (b) describe the nature and basis of the Dispute; and (c) set forth the specific relief sought. Our notice to you will be similar in form to that described above. If you and Fluid cannot reach an agreement to resolve the Dispute within thirty (30) days after such Notice is received, then either party may submit the Dispute to binding arbitration administered by JAMS or, under the limited circumstances set forth above, in court. All Disputes submitted to JAMS will be resolved through confidential, binding arbitration before one arbitrator. Arbitration proceedings will be held in Delaware unless you are a consumer, in which case you may elect to hold the arbitration in your county of residence. For purposes of this Section 14, a “consumer” means a person using the Services for personal, family or household purposes. You and Fluid agree that Disputes will be held in accordance with the JAMS Streamlined Arbitration Rules and Procedures (“JAMS Rules”). The most recent version of the JAMS Rules are available on the JAMS website and are hereby incorporated by reference. You either acknowledge and agree that you have read and understand the JAMS Rules or waive your opportunity to read the JAMS Rules and waive any claim that the JAMS Rules are unfair or should not apply for any reason. You and Fluid agree that these Terms affect interstate commerce and that the enforceability of this Section 14 will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (the “FAA”), to the maximum extent permitted by applicable law. As limited by the FAA, these Terms and the JAMS Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any Dispute and to grant any remedy that would otherwise be available in court, including the power to determine the question of arbitrability. The arbitrator may conduct only an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual. The arbitration will allow for the discovery or exchange of non-privileged information relevant to the Dispute. The arbitrator, Fluid, and you will maintain the confidentiality of any arbitration proceedings, judgments and awards, including information gathered, prepared, and presented for purposes of the arbitration or related to the Dispute(s) therein. The arbitrator will have the authority to make appropriate rulings to safeguard confidentiality, unless the law provides to the contrary. The duty of confidentiality does not apply to the extent that disclosure is necessary to prepare for or conduct the arbitration hearing on the merits, in connection with a court application for a preliminary remedy or in connection with a judicial challenge to an arbitration award or its enforcement, or to the extent that disclosure is otherwise required by law or judicial decision. You and Fluid agree that for any arbitration you initiate, you will pay the filing fee (up to a maximum of $250 if you are a consumer), and Fluid will pay the remaining JAMS fees and costs. For any arbitration initiated by Fluid, Fluid will pay all JAMS fees and costs. You and Fluid agree that the state or federal courts of the State of Delaware and the United States sitting in Delaware have exclusive jurisdiction over any appeals and the enforcement of an arbitration award. Any Dispute must be filed within one year after the relevant claim arose; otherwise, the Dispute is permanently barred, which means that you and Fluid will not have the right to assert the claim. You have the right to opt out of binding arbitration within 30 days of the date you first accepted the terms of this Section 14 by sending an email to [email protected] or by certified mail addressed to 2261 Market Street #4599 San Francisco, CA 94114. In order to be effective, the opt-out notice must include your full name and address and clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve Disputes in accordance with Section 14. If any portion of this Section 14 is found to be unenforceable or unlawful for any reason, (a) the unenforceable or unlawful provision shall be severed from these Terms; (b) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of this Section 14 or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to this Section 14; and (c) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration. Further, if any part of this Section 14 is found to be unenforceable or unlawful, then the entirety of this Section 14 will be null and void (but only to the extent that it is unenforceable or unlawful), and, if such is the case, all parties agree that the exclusive jurisdiction and venue described elsewhere in the Terms will govern any action arising out of or related to these Terms. Modification We reserve the right to modify these Terms from time to time at our sole discretion. If we make changes to these Terms, we will provide notice of such changes as appropriate, such as by providing notice through the Services or updating the "Last Updated" date at the top of these Terms. Your continued use of our Services will confirm your acceptance of the revised Terms. We encourage you to frequently review the Terms to ensure you understand the terms and conditions that apply to your use of our Services. If you do not agree to the amended Terms, you must stop using our Services. Miscellaneous These Terms constitute the entire agreement between you and Fluid in relation to your use of our Services and supersede any prior agreements, oral or written. If any part of these Terms is held invalid or unenforceable, that portion will be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions will remain in full force and effect. Your obligations under these Terms are not assignable or transferable by you without our prior written consent. We may freely assign these Terms. Failure by Fluid to enforce any provision of this agreement will not be deemed a waiver of future enforcement of that or any other provision. Any waiver, amendment, or other modification of any provision of these Terms will be effective only if in writing and signed by duly authorized representatives of both parties. Contact If you have any questions about these Terms, please contact Fluid at [email protected]. Last Updated: 06/01/2023